Legisprudence: A New Theoretical Approach to Legislation : Proceedings of the Fourth Cenelux-Scandinavian Symposium on Legal Theory (European Academy of Legal Theory Series)

160 Pages·2016·0.55 MB·English

by  Luc Wintgens

THE EUROPEAN ACADEMY OF LEGAL THEORY SERIES
LEGISPRUDENCE
THE EUROPEAN ACADEMY OF LEGAL THEORY SERIES
General Editors
Professor Mark Van Hoecke
Professor François Ost
Professor Luc J Wintgens
Titles in this Series
Moral Conflict and Legal Reasoning
Scott Veitch
The Harmonisation of European Private Law
Mark Van Hoecke andFrançois Ost (eds)
On Law and Legal Reasoning
Fernando Atria
Law as Communication
Mark Van Hoecke
Legisprudence
Luc J Wintgens (ed)
Legisprudence:
A New Theoretical Approach to
Legislation
Proceedings of the Fourth Benelux–Scandinavian
Symposium on Legal Theory
Edited by
LUC J WINTGENS
Professor of Law and Jurisprudence,
University of Brussels and European Academy of Legal Theory, Brussels,
Director of the Centre of Legislation, Regulation and Legisprudence
OXFORD – PORTLAND OREGON
2002
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Contents
ListofContributors ix
1 Rationality in Legislation—Legal Theory as Legisprudence:
An Introduction 1
Luc J Wintgens
2 Legislation as an Object of Study of Legal Theory: Legisprudence 9
Luc J Wintgens
I. Introduction 9
II. The Absence of a Theory of Legislation (Legisprudence) 10
III. The Internal and the External 15
1. The Internal and External Point of View 15
2. Points of View and Theories of Law 16
3. The Hermeneutic Point of View 17
4. The Judicial Point of View 21
5. The Judicial Point of View Qualified: Another
Hermeneutic Point of View? 22
IV. The Internal and the External: The Legislator’s Point of
View 24
1. Legalism, Sovereignty and the Internal Point of View of
the Legislator 24
2. The Legislator between Duty and Aspiration 26
3. The Legislator’s Point of View: Yet Another Version of
the Hermeneutic Point of View? 29
4. The Bundesverfassungsgericht and the Rationality of
Legislation 32
5. The Hermeneutic Point of View, the Hermeneutic Point
j
of View and Coherence 35
l
V. Summary and Conclusion 39
3 Making Society through Legislation 41
Lars D Eriksson
I. Introduction 41
II. The Liberal State and the Welfare State 42
III. Some Problems Related to Welfare Rights 44
IV. An Exemplification: What Happened to the Job? 45
V. Is this Really a Contribution to Legisprudence? 46
vi Contents
4 Rationality of Legislation in a Sociological View 49
Kauko Pietilä
I. An Overture in Philosophy 49
II. The Problem Itself 49
III. Modes of Representation 51
IV. The Senseless Lawgiver I: The Case of Reduced Taxes 54
V. The Senseless Lawgiver II: The Case of Financial
Liberation 57
VI. This is a Constitutional Problem 60
5 Legislative Inflation and the Quality of Law 65
Svein Eng
I. Introduction 65
II. Is Great Legislative Quantity Per Se a Bad Thing? 66
1. Legislative Quantity as Product 66
2. Legislative Quantity as Process 67
III. Some Main Causes of Legislation—and of Legislative
Inflation 68
IV. Is Bad Legislation among the Significant Causes of Great
Legislative Quantity? 68
1. Substantial Flaws 69
1.1 Briefly on Substantial Flaws 69
1.2 Is Substantially Flawed Legislation Among the
Significant Causes of Great Legislative Quantity? 69
2. Technical Flaws 74
2.1 Briefly on Technical Flaws 74
2.2 Is Technically Flawed Legislation Among the
Significant Cause of Great Legislative Quantity? 75
3. Means–End Flaws 76
3.1 Briefly on Means–End Flaws 76
3.2 Is Means–End Flawed Legislation Among the
Significant Causes of Great Legislative Quantity? 77
V. Working from Below: Legal Definitions as a Starting Point for
Reflections and as a Test Case for General Propositions 78
VI. Conclusion 79
6 Predictable Rules and Flexible Principles—The Problem of
Ideological Pluralism and Legitimacy 81
Christian Dahlman
I. Introduction 81
II. Two Ways of Dealing With Pluralistic Legal Concepts 82
III. Conclusion 85
Contents vii
7 Concept and Institution of the State in the European Legal
Tradition 87
Hannu Tolonen
I. Points of Departure 87
II. Feudal State/Society 89
III. The Modern Public Power: The Bureaucratic State 91
1. The Concept of Sovereignty 92
2. Rechtsstaat 92
IV. Welfare State and Post-welfare Conception of the State 93
1. Welfare Doctrine 94
2. Post-welfare State: Welfare and Post-welfare 94
V. Conclusion 97
8 Legislation Between Politics and Law 99
Kaarlo Tuori
I. The Problem of Legisprudence 99
II. Legislative Activities as a Combination of Political and Legal
Practices 100
III. Legislation in the Overall Structure of the Legal Order 101
IV. Law and Morals 102
V. Excursion: the Autonomy of the Law 104
VI. The Rationality of Legislation 104
9 Legisprudence and European Law: in Search of the Principles of
European Legislation 109
Amaryllis Verhoeven
I. Introduction 109
II. Law-making in Europe: an Unconventional Scheme 110
1. Who ‘Legislates’ in the European Union? 110
2. Constitutional Constraints on European Law-making 112
III. In Search of a Conceptual Model 117
1. Three Competing Models of Law-making 117
2. Law-making European-Style: Beyond Parliamentary
Sovereignty 122
IV. Conclusion 125
10 Rationality in Legislation by Employing Informatics? 127
Wim Voermans
I. Drafting Assistance and Computers: Legimatics 127
II. Legislative Drafting and Legal Problem Solving 128
III. Legislative Quality Standards as a Motivation for the
Development of LEDA 129
viii Contents
1. The Directives for Regulations 130
2. Handling the Directives 131
3. The Goals of the LEDA Project 131
IV. The LEDA System: How Does it Work? 131
1. The LEDA system’s Functions: General Features 131
2. The Preparatory Module 132
3. The Basic Design Screen 135
4. The CD Parser 136
V. Conclusion 136
11 The Forum Model in Evaluation of Legislation 139
Heinrich Winter
I. Introduction 139
II. The Growing Importance of Evaluation-Research 140
III. Legislative Policy: From Quantity to Quality 141
IV. The Orientation of Meta-Evaluations 142
V. Central Thesis: Systematic Evaluation can Lead to Improved
Quality of Laws 143
VI. The Forum Model 145
VII. Conclusion 148
VIII. Postscript: Drawbacks and Risks 150
List of Contributors
Christian Dahlman, University of Lund
Svein Eng, University of Oslo
Lars D Eriksson , University of Helsinki
Kauko Pietilä, University of Tampere
Hannu Tolonen, University of Turku
Kaarlo Tuori, University of Helsinki
Amaryllis Verhoeven, European Commission
Wim Voermans, University of Leiden
Heinrich B Winter, University of Groningen
Luc J Wintgens, University of Brussels, Centre for Legislation,
Regulation and Legisprudence, Brussels